Can inability to remedy a child’s morbid obesity be considered child abuse or neglect?

Posted Sunday, June 26th, 2011 by Gregory Forman
Filed under Department of Social Services/Child Abuse and Neglect, Jurisprudence, Not South Carolina Specific, Of Interest to Family Law Attorneys, Of Interest to General Public

Until recently I had been representing the family of a child whose morbid obesity led to repeated Department of Social Services interventions.  His medical doctors could find no organic reason for the child’s morbid obesity and warned he was at high risk of early death or serious health problems unless he lost weight and kept his weight under control.  Whenever he was removed from his family he would slowly lose weight, only to rapidly regain that weight when he returned home.  From the family’s perspective they were being unfairly singled-out and oppressed (the child was happy in their care and there’s plenty of obese children in Charleston County).  From DSS’s perspective, the agency was trying to protect a child from serious injury or early death that his family seemed uninterested or unable to prevent.

Is failing to remedy a child’s morbid obesity a form or child abuse or neglect?  Under South Carolina Code it could certainly appear to be.  S.C. Code § 63-7-20(4)(c) offers a definition of child abuse or neglect that includes when a person responsible for a child’s welfare “fails to supply the child with adequate food…  supervision appropriate to the child’s age and development, or health care though financially able to do so or offered financial or other reasonable means to do so and the failure to do so has caused or presents a substantial risk of causing physical or mental injury.”  Morbid obesity presents a substantial risk of physical injury.  Providing a child with so much food that the child ends up morbidly obese could arguably be failing to provide the child “adequate” food.  Failing to properly supervise the child’s diet appropriately for the child’s age and development or failing to provide medical care necessary for the child to maintain a healthy weight could constitute abuse or neglect under this statute.

However, to date, there is no reported South Carolina case finding that failing to properly maintain a child’s weight is child abuse or neglect.  Further the law is unsettled throughout the United States.  A Westlaw search of the allstates database for “child /s (abuse neglect) /s obes!” located only one published opinion, from a New York State family court, in which a child’s uncontrolled obesity led to removal and even that case was reversed on appeal in In re Brittany T., 48 A.D.3d 995, 852 N.Y.S.2d 475 (2008).  Subsequent searches located two reported cases in which a parent’s inability to properly monitor a morbidly obese child’s diet led to removal or termination of parental rights. In the Interest of G.C., a Minor Child,66 S.W.3d 517 (Tx. App. 2002); In the Interest of L.T., a Minor Child, 494 N.W.2d 450 (Ia. App. 1992).  See alsoIs Childhood Obesity a Form of Child Abuse? Factors to consider in judicial rulings by Hayes, Jenna T, Sicafuse, Lorie L.

Given the large and increasing percentage of obese children in America, it is unclear whether family courts are willing or able to engage in widespread monitoring of children’s weight and diet in the goal of preventing the “abuse” or “neglect” of growing up with a greatly increased risk of heart disease, stroke and diabetes.

The inability or unwillingness to develop legislative remedies to childhood obesity may ultimately lead to folks seeking judicial solutions to this problem.  I suspect the next decade may see a geometric explosion in the number of child protective services cases brought over obesity.  Further, I expect many custody cases to be fought over a child’s diet, just as custody cases a decade ago began being fought over secondhand smoke exposure.  For a family law practitioner who represents parents in custody or abuse and neglect proceedings, developing a network of nutritionists one can turn to for guidance may become a standard part of the practice.


5 thoughts on Can inability to remedy a child’s morbid obesity be considered child abuse or neglect?

  1. MJ Goodwin says:

    Greg, how big are we talking and what age child? I think you are right, that this will become the next second hand smoke type trend of case. But I think it will all be very fact specific. It would be nice if all of us focused on having a healthy lifestyle. It is something I have recently begun to focus on. But I am not sure that failing to do so is a good enough reason to take a child. Were the parents blatantly disregarding the doctor’s instructions? If so, then it is medical neglect. But what about parents of say an asthmatic child who doesn’t improve even though they follow the instructions? How about a child who dies from cancer even though he is given the treatments correctly? On the other extreme, what about parents of an anorexic teenager? I had a friend who actually starved herself to death when I was a teenager. Is that not just as bad? What did DSS do to help the family get educated about proper nutrition and exercise? Are the parents overweight? Having been overweight for a good portion of my life, I think there are prejudices against those who are overweight. This may be one of them. It is, like all government intrusion, a fairly slippery slope. There is a reason that a lot of lawyers are referred to as “fat cat” lawyers. So it will be interesting to see where this goes.

    1. MJ- I don’t want to provide client details. The important fact that I believe justifies judicial intervention was that the child lost weight in foster care and rapidly gained weight when returned to my clients. This happened three times before DSS decided to seek a treatment plan of no further services and termination of parental rights (TPR). I withdrew before the final permanency planning hearing (where the judge ordered no further treatment and TPR). The family is filing a pro se appeal.

  2. MJ Goodwin says:

    I will be interested in how it turns out. Though my experience is that most pro se appeals are not properly pursued. They may get a court appointed attorney for the TPR though. It will be interesting. Can you at least comment on whether the child is over the age of 12?

  3. EYFigueroa says:

    The red flag in all of this is the child losing weight outside of the home and rapidly regaining the weight once back with family.

    Couple that with physicians not finding an organic reason for the obesity, I, as a layman and a parent, must agree with the courts.

    Is this a slippery slope? Yes.

    However, at some point parents must take responsibility for the care of their children.

    I can’t imagine that this child was simply overweight. It seems he/she was morbidly obese which is HIGHLY dangerous for an adult much less a child. The health care costs alone are enough to warrant further consideration. Also, such a child cannot possibly have a good quality of life.

    I’m not suggesting that the parents do not love the child. They may simply be ignorant of the consequences. However, if a court told me that I’d lose custody unless I got my kid healthier, we’d ALL be healthier in that house.

    Based upon the information given in this essay, I’d have to agree with the court’s decision.

  4. I find it more than interesting how people are against President Obama’s mandated health care — yet no one seems even remotely interested in a family court mandating health care under far more cruel penalties.

    What’s worse, having to buy health insurance or having a child taken away? Would anyone care to clarify that one for me?

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